Archive of posts for categoryLJIL Vol. 25 No. 3

[Jean Galbraith is Assistant Professor at Rutgers-Camden School of Law]

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

I want to thank Opinio Juris and the Leiden Journal of International Law for putting together this symposium. I am especially grateful to Professor Dov Jacobs for organizing this session and to Professors Mark Drumbl and Meg deGuzman for their thoughtful comments about my article.

Some years back, I noticed how frequently international criminal defendants argued that they deserved credit for help they had given members of the other side during the conflict. Almost every ICTR defendant claimed that he had helped protect one or more Tutsis, and ICTY defendants asserted all manner of humanitarian acts. Most of these claims seemed dubious in their veracity or trivial relative to the defendants’ crimes, but a few left me wondering whether those defendants really belonged among the worst of the worst. These observations led to this article, which has both a structural and a substantive component.

Structurally, I look at how the ICTY and ICTR have dealt with evidence of frequent use of defendants’ “good deeds” in sentencing. The tribunals have dealt with this evidence in ad hoc fashion, with trial chambers taking a variety of cursory approaches and with little guidance from the Appeals Chamber. This in and of itself is suggestive of how international criminal tribunals allocate their efforts. Where inconsistencies in substantive international criminal law tend to get thoroughly examined and resolved, other kinds of issues – especially in sentencing – often slip through the cracks. This may be especially true of issues that are, as Professor Drumbl puts it, sui generis to international criminal law: it is harder for courts to recognize these as systematic issues in the first place.

Substantively, I consider how defendants’ good deeds should affect the sentences they receive. This is a hard question. There’s no consensus among domestic jurisdictions about how much or how little to weigh good acts at sentencing. When confronted with conflicting domestic approaches, the ICTY and ICTR have often focused on picking among them. I argue, however, that the tribunals can avoid doing so here and instead derive their approach from the unique features of international criminal law. Specifically, I argue that, as a doctrinal or functional matter, international crimes typically arise out of conflicts between groups — and are considered to be international crimes worthy of the attention of the international community in part because of this quality. Because of this, I suggest that good deeds by defendants aimed at those on the other side of the conflict should mitigate in part (though only in part) the appropriate level of retribution at sentencing, with the degree of mitigation to depend on the relative magnitude of the defendant’s crimes and good deeds. I also argue that, depending on motive, a defendant’s good deeds might also serve as evidence of rehabilitable character.

Professors Drumbl and deGuzman direct most of their comments to my substantive argument. Professor deGuzman questions my overall emphasis on retributivist reasoning and also notes concerns about some particular points. Professor Drumbl is sympathetic to my overall argument but urges me to revisit or expand my argument on five specific issues. I can’t do full justice to their points, which reflect careful scholarly engagement with my article, but here are some brief responses.

[Mark A. Drumbl is Class of 1975 Alumni Professor of Law & Director of the Transnational Law Institute, Washington and Lee University School of Law]

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

International criminal law reclines upon simple binaries: good/evil – for instance – as well as authority/helplessness and perpetrator/victim. Victims, however, can victimize. And, correlatively, perpetrators can both kill and save at the same time. Perpetrators may do so selflessly at great risk to themselves or selfishly at great benefit to themselves. Or they may do so impulsively – perhaps with no discernible motive at all. In Roman Polanski’s The Pianist, Itzhak Heller, a Jewish ghetto police guard, suddenly pulls the protagonist Władysław Szpilman out of a line of detainees forced to board a train to Treblinka. Heller, derided for having badly beat up Jews, risks death to save Szpilman – but only Szpilman, who himself is far from heroic – from death. The scene ends. The audience is left hanging in the characters’ “grey zone”. Why did Heller do that? And why Szpilman?

The erraticism of human nature unsettles the reductive parsimony of the courtroom. It is tough enough to convict human rights abusers for their inhumanity. Now, the law has to recognize their glimmers of humanity, as well, and make sense of these dissident facts. Assuredly, tout comprendre, c’est tout pardonner; but perhaps, also, tout considérer, ça pardonne également.

Professor Galbraith’s important article explores how international criminal law (ICL) grapples with the abuser who also saves the lives of others. She does so through an examination of the place of “good deeds” in the sentencing practice of the ad hoc tribunals. Galbraith understands “good deeds” to signify acts of humanitarian behavior undertaken by the convict, presumably in the time-frame covered by the indictment, towards individuals on the “other side,” notably, individuals who are not the specific victims of the convict’s crimes.

Galbraith’s research demonstrates that the ICTY and ICTR consider good deeds (a.k.a “selective assistance”) in mitigation of sentence, albeit in a manner that is inconsistent within the tribunals themselves and also inconsistent as between the two tribunals. Galbraith is concerned with this incoherence. In response, she builds a normative argument in favor of considering good deeds in mitigation. She roots her argument in a retributive understanding that – regardless of motive –good deeds undertaken toward members of the other side ought to count. Hers is therefore an objective, effects-based analysis. For Galbraith, obligation does not matter either: in other words, respecting customary international law requirements also constitutes a good deed. Regardless of pre-existing duty, or subjective motive, “a defendant who has done good deeds towards those on the other side of the conflict merits less retribution, from a collective perspective, than a comparable defendant without such good deeds.” The less selective the assistance, to be sure, the more it should count.

Galbraith’s article is a valuable contribution to sentencing, which chronically presents as one of ICL’s most under-theorized aspects. It does not surprise me that judicial treatment of good deeds as mitigating circumstances remains unpredictable and desultory. Galbraith’s development of a workable test is to be applauded. In my book Atrocity, Punishment, and International Law,I chided ICL for its excessive dependence on the principles of ordinary municipal criminal law – which I had described as “borrowed stilts.” Galbraith’s push to ground a theory of good deeds in the specifics of collective atrocity crimes is a refreshing bid to develop a sui generis penology for ICL.

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

Thanks to the Leiden Journal of International Law and to Opinio Juris for inviting me to contribute to this discussion of Jean Galbraith’s excellent article. Jean has identified an important issue about which the current literature on international sentencing is largely silent. In her characteristically clear and insightful prose, Jean demonstrates that the ICTY and ICTR have failed to develop a coherent approach to the role that a defendant’s good deeds play in sentencing decisions. This is problematic for several reasons. Jean’s focus is largely on the possibility of unequal treatment of defendants although she also mentions the inherent value of doctrinal clarity and the potential impact on victims. But sentencing inconsistencies can also have deleterious effects on reconciliation in communities recovering from atrocities and can undermine global confidence in international justice. Jean’s article is thus an important contribution to a growing literature that attempts to bring theoretical and doctrinal clarity to sentencing in international criminal law.

The most important debate in the literature is, of course, between scholars who advocate a largely retributive approach to sentencing and those would prefer that judges aim to achieve good consequences. Although Jean includes a brief discussion of deterrence and rehabilitation, her article is largely focused on retribution as the primary goal of international sentencing. While she doesn’t discuss it explicitly, her analysis assumes that international judges should aim to give those convicted of international crimes the sentences they deserve. That is, the quantum of punishment should be determined largely according to the defendant’s desert rather than with a view to achieving beneficial consequences. According to Jean, judges should consider a defendant’s good deeds in deciding how much punishment is deserved, at least when those deeds benefited the group that was harmed by the defendant’s crimes. Indeed, judges should reduce a defendant’s sentence roughly according to the magnitude of the effects of the defendant’s good deeds on the group compared to the effects of his or her crimes.

While I agree with Jean’s conclusion that judges should take account of good deeds because they reduce desert, I have several questions about how she reaches that conclusion. First, Jean’s version of retributive theory relies on the notion that retribution is “for” someone. In the case of international crimes, Jean believes retribution is for the victims but also for the group to which the victims belong. Because international crimes are usually perpetrated against groups, good deeds that benefit those groups mitigate international crimes. This understanding of retribution strikes me as a rather utilitarian. To Kant, punishing those who deserve it is inherently important. Indeed, it is required. Such punishment is not “for” anyone as illustrated by his famous proclamation that a society dispersing to the four corners of the earth should first execute its last criminal.

Jean’s assertion that retribution in international criminal law is “for” the targeted group and individual victims suggests that if a defendant succeeded in exterminating the entire group no retribution would be appropriate. Moreover, not all individuals and groups want retribution. In such cases should international courts refrain from punishment? American retributivists expressed shock at the 21-year sentence recently awarded to Norwegian mass murderer Anders Behring Breivik. Brevik’s crimes were large scale (77 victims) and were committed against a group – young political activists. In fact, the prosecutor considered charging Breivik with crimes against humanity. But Norway’s system is based on restorative rather than retributive principles and there has apparently been considerable satisfaction with the sentence in Norway, including among victims. When international tribunals address crimes against groups that prioritize non-retributive sentencing goals should they still take good deeds into consideration in the way the Jean suggests?

Second, if international judges are supposed to gauge sentences according to the retribution that is due to a particular group shouldn’t they adhere to the group’s sentencing norms? If the affected group executes murderers or sentences them to life in prison, won’t the much lower sentences that most international courts award, often for crimes involving multiple murders, fail to satisfy the group’s need for retribution? This points to a key problem with retributive sentencing in international courts – that societies don’t agree about how much punishment is deserved for particular crimes.

Third, Jean’s discussion of the retribution that is due to affected group focuses exclusively on the harms the group suffered and the benefits the group received through the defendant’s good deeds. Indeed, she urges judges not to reject good deeds performed for bad motives because the group’s benefit is not dependant on good motives. Here again Jean departs from traditional retributive theory. Desert is generally considered to be a function of both harm and culpability. While a defendant’s good deeds may mitigate the harm to the group, when those good deeds are committed for bad motives the defendant’s desert may be unaffected. For example, assume a defendant was engaged in killing members of a group but decided to keep one member of the group alive on the condition that the victim pay the defendant. While the group was benefited by the decision to keep one of its members alive the defendant’s culpability is probably not reduced sufficiently to reduce his desert much.

As these comments suggest, I am skeptical of the notion international judges should aim to capture the full extent of a defendant’s culpability in allocating sentences. My agreement with Jean’s conclusion stems instead from my belief that international judges should be careful to avoid sentencing defendants to more punishment than they deserve. In my view, a defendant’s desert is a function of both the harm the defendant caused and his or her moral culpability, each of which can be reduced by good deeds. Beyond their role in affecting the retributive limit on punishment, good deeds should be taken into account because of their potential consequences. As Jean notes, good deeds can speak to a defendant’s capacity for rehabilitation and taking them into account may encourage future defendants to engage in good deeds. Moreover, acknowledging the importance of good deeds sends a message about the value that the international community places on such conduct, which can help to shape norms around the world.

I am grateful to Jean for her important and thought-provoking contribution to the debate about the goals of international sentencing and look forward to continuing the discussion.

[Jean d’Aspremont is Associate Professor of International Law, Amsterdam Centre for International Law (ACIL), University of Amsterdam and Editor-in-chief of the Leiden Journal of International Law]

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

Debate has always been a central medium of thought-making and, hence, knowledge-production in social sciences. This is why, albeit aware of the pitfalls of such platforms (see my EJIL:Talk! post), I initiated, with the help of Dov Jacobs, a partnership between the Leiden Journal of International Law and Opinio Juris. It is the very same rationale that propelled the observations on the wording techniques in international law that are under discussion today. Nourishing – predominantly self-reflective – debates was indeed the avowed goal of this piece to which Francesco Messineo and Michael Kearney reacted, thereby further contributing to the deliberative agenda behind it. I am thus extremely grateful to them for taking some of their very precious summer time (probably the moment of the year the most conducive to reading and thinking). I am similarly very appreciative of the fact that both authors took pains to venture into (and play with) some of the wording techniques described in this editorial, doing so with great mastery and uncontested brio.

Although deeply thankful for their effort, I bemoan the extent to which Francesco and Michael, under the – conventionally necessary – veil of disagreement, fundamentally concur with the core ideas defended in the paper. Indeed, there neither of them seem to completely deny the competitive dynamics at play in the epistemic community of international law as well as the cosmetic, eye-catching, erudition-magnifying techniques which are deployed by the members of that community in their attempts to ensure that the information they produced is received and validated as proper knowledge by their peers. This being said, the readers of this blog ought not be anxious. Voicing disagreement is congenital to expert blogging and there is amble material to bicker about. Allow me to – completely arbitrarily and out of personal convenience – pick those points I deem the most fundamental and which I – very selfishly – would enjoy elaborating on (after all, legal blogging is a structurally and emotionally selfish exercise).

Many thanks to the organisers at LJIL and Opinio Juris for the opportunity to comment on Jean’s article on Wording in International Law.

At the core of the paper is a plea that international legal scholars be alert to a tendency in contemporary scholarly production whereby the desire of authors to establish, via various negative wording strategies, their professional or personal prowess, trumps the essential requirements of the community on the whole, namely the preservation of a sense of shared social identity without which the very structure and potential of the community could fade away.

While certainly an interesting paper that has raised some significant issues worthy of further reflection, I’m not, yet, overly convinced by the underlying proposition. This is, if I understand it correctly, that there is an ongoing, deleterious competition amongst and between international legal scholars, characterised in the main by a propensity to faux-erudition dressed up with hollow aesthetics, and which, unless checked, or at the least accorded adequate consideration and attention, could culminate in the intellectual and financial marginalisation of the community of international legal scholars.

In the first instance, and what I consider to require further clarification, is the idea that we, as scholars of international law, are indeed engaged in a competition for naming. The paper’s conclusion almost suggests as much in stating that this competition may not even be ‘a proper competition in the first place’, a proposition that I would tend to adhere to though I would like to hear further on the matter. The very idea that engaging in scholarly production (and considering scholarship production while failing to touch on teaching was something I thought amiss here) is a form of competition, is something I don’t find particularly convincing (not to mention attractive).

There is no doubt perpetual competition amongst the scholarly community (and students) for research funding, internships, post-docs, lectureships, chairs, and a host of other finite resources, perhaps defining the community in many ways, but I’m unsure that such externally enforced, structural competition can properly be understood as also manifesting itself as a competition for influence through our scholarly texts. I’m ready to be swayed though, keeping in mind the tremendous volume of texts produced and the need to be recognised, cited, and acknowledged which is certainly as much professional as personal, but for now I remain unconvinced that even if such a competition does exist, that it presents a significant threat to international legal scholarship on the whole.

Following on is the characterisation of such competition as Wordfare. I wasn’t exactly overjoyed to see the use of this term. I’ve published recently on the concept of Lawfare, and while the substance of that work appears to me to have been worthwhile, the term itself, to be honest, grates. Actually the use of the term Wordfare here prompted me to finally chase down the etymology of ‘fare’. I’d assumed it was from the French faire – to do – as in ‘to do’-war, but apparently it is rooted in ye olde English, meaning ‘to journey’, as in ‘to go’-to war. Wordfare, ‘to go’ to words, that is, the idea that scholars apply various tactics of wording in order to bolster the substance of their argument, seems from one angle to be stating the obvious insofar as we have very few additional tools with which we can easily work with. Whether this can properly be understood as evidence of a competition is doubtful.

What is compelling about this paper are the reflections and critiques on the undeniably actual existing strategies of some scholars to artificially bolster the substance of their arguments through various uncomplimentary techniques. The sub-sections such as ‘Wording and the magnifying of erudition’ are a welcome, if understated, damning of what is a quietly infuriating tendency in the literature. Quiet, I suggest, because there is certainly a community etiquette which precludes the overt ridicule or lampooning of scholarly production that is quite obviously pompous, bombastic, or self-gratifying. As an aside, given that there is so much power exercised over the community by near monopolistic, profit-driven publishing houses, perhaps this is to be expected. Going on, if there is to be a functioning community of international legal scholars then a shared etiquette is, I agree, essential. Yet one of the elements of this etiquette, as I understand it at least, is to avoid publishing overly critical reviews of scholarly texts. Simply put, if you find a piece you’ve been requested to review is of a terrible quality then the best thing to do is to have it disappear rather than to breach the received etiquette. We can easily knock judges, journalists, prosecutors, lawyers, or politicians when they fumble in producing textual material but it’s rare enough to sink our teeth into colleagues. This was an issue I grappled with in writing a review of a book on counter-terrorism legislation back in 2007 (review published in 2011). I concluded thus: ‘In effect, given that this book is peppered with such quantities of both factual and typographical errors, not to mention an absence of any overall direction, its very publication is puzzling and should strike a note of warning for the quality of academic work in this area.’ The book at hand was genuinely shoddy, and my motivation in breaching etiquette (perhaps readied also by deep opposition to the author’s political bent?) was essentially to warn students before they forked out the whopping £55 being asked by the publisher.

Reading Jean’s paper I felt that the underlying proposition could have been more easily asserted and clarified had he provided examples for each of the offences discussed, and linked them directly to the Wordfare phenomenon. That would doubtless have constituted a particularly insensitive breach of etiquette, and while it would no doubt have been entertaining – assuming one’s own work wasn’t being pilloried – as it stands the paper will encourage each of us to reflect critically on our own scholarly products, and it thereby serves a valuable purpose. It certainly prompted me to reflect on various texts in which I may have engaged in some of the Wordfare techniques and there is a valuable contribution here to an examination of the nature of our community as manifested in the structure and form of the texts we produce.

My final comment is to assert that while scholars should avoid the various cringeworthy offences highlighted in the paper, we should also strive to avoid the straitjacket of a standard style or orthodoxy (not that Jean is advocating any such thing, though the suggestion that we must ‘preserve the linguistic consensus’ may too closely border on such an idea). While the idea of the social identity of the community of international legal scholars is at the heart of this paper, I’m not quite sure that it actually exists in quite as formal a manner as suggested, nor that there is any necessity for such. To be sure an individual may satisfy all the criteria Jean correctly notes as defining membership of the community, but perhaps many of us feel that while we have one foot in, another is firmly out; perhaps the second foot is entrenched elsewhere in the broader interpretative community of international law, and perhaps it is very much elsewhere. Such hybridity can, I suggest, be encouraged, while avoiding the ills of merely shouting past each other in an effort to fuel SSRN tallies through dreaming up fame-inducing neologisms and idioms. Allowance can be made for concepts and wording that properly serves a purpose in promoting or clarifying a substantive argument even if drawn from outside the international legal scholarship set, or even from a quite distinct branch of scholarship. This may be the case even if such wording does purposively and explicitly convey ‘the social identity of the belligerents’. (Actually, on this very point, and conscious of my own sins, may I suggest we avoid unnecessarily using military terms!)

Given that I found this paper to prompt critical self-reflection, I will finish with a comment on a personal example of ‘naming’ that probably falls right within the characterisation of Wordfare that Jean is raising. In an April 2012 comment piece for Opinio Juris on the decision of the ICC Prosecutor on the Palestinian declaration, I needed to use the term ‘politricks’ to describe the actions of the Palestinian Authority. Pompous, fame-enhancing, dismissive of the possibility of a shared social identity, or just self-gratifying? All legitimate responses such ‘naming’ may have prompted in my peers, yet it was genuinely informed by my social identity as influenced by the social and political semantics, the language that is, that drives the consciousness inherent in reggae. I’m not being asked to apologise for this, but I’m glad that in addition to the formal products we place in the journals and books which constitute the backbone of international legal scholarship, the development of the blogs have in a singular manner confirmed and promoted a form of communal social identity that in many ways depends on contrasting styles and formats, even if occasionally raising a cacophonous brouhaha, and for now at least I don’t think we need worry about our expensive debating club being dragged down by the occasional wording or aesthetical offence.

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

Unless international lawyers get their act together and agree on the basic meaning of the key terms in their discipline, says Jean d’Aspremont, observers (and, crucially, funders) may suddenly realize that the profession is really no more than an ‘expensive debating club’ – often funded by the taxpayer – ‘in which everyone talks past each other’. Thanks also to blogs such as Opinio Juris, access to the debating chamber is no longer subject to hierarchical initiation rituals: anyone with a higher degree in (international) law is at least ostensibly welcome to join in. The ensuing competition for credibility is rife, says d’Aspremont. An ever‑increasing mass of ‘young’ and often ‘arrogant’ scholars employ words as their tools in a ‘hen house’ of ‘violent’ conflict aimed at finding new ‘names’ for things which often already have perfectly usable ones. Because of the death of Aristotelian logic and other ‘foundational’ philosophies, the main aim of the profession has become the establishing of one’s persuasiveness and authority at the expense of the nearest colleague, often in pursuit of one’s ‘unquenchable thirst for recognition’. In order to perpetuate the illusion of a fruitful debate, the meaning of words must constantly change – there is no ‘epistemic peace’, as d’Aspremont puts it. Forget great systems of conceptual beauty collectively built by cohesive schools of thought: we want tenure, and possibly glory, too. In d’Aspremont’s view, international legal academia has become an endless game where the angst of oblivion often trumps logic and courtesy. Furthermore, this constant renaming of the institutions of international law is fashionable but pointless. As in the Leopard, everything must change constantly so that nothing actually changes.

The preceding paragraph is meant to be an example of what d’Aspremont chastises. I have deliberately simplified and exaggerated his argument. I have taken his words out of context and reduced an eloquent set of arguments to what may be perceived as a rant (which his article is not). To make things worse, I have then added a perfectly unnecessary reference to a work of literary fiction which may be obscure to some of my readers, dropping it there as if everyone should know what the Leopard is (D’Aspremont would diagnose this somewhere in the spectrum between a pointless display of ‘erudition’ and a ‘strategy’ of mild ‘intimidation’). After having created this aesthetically and rhetorically pleasing straw-man, I should now proceed to mercilessly criticise his argument – a short critique is, after all, what the kind editors of LJIL and Opinio Juris asked me to write. (more…)

[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

Over the next few days, we are happy to bring you a discussion of two articles published in Volume 25-3 of the Leiden Journal of International Law, the first one a timely self-reflection on the practices of the community of international law and the second one an analysis of the “good deeds” of international criminal defendants and how they are and should be taken into account at the sentencing phase.

The first discussion has as a starting point the editorial by Jean d’Aspremont entitled Wording in International Law. In his piece, the editor in chief of the Leiden Journal invites us to “self-reflect” on the practices of an epistemic community (international lawyers, more specifically academics) which, among other things, engages in a competition for naming through “wordfare” techniques meant to artificially create singularity in order to advance careers, and all this in the context where the rationalist foundations of international law have been weakened and even shattered. Francesco Messineo, from the University of Kent and Michael Kearney, from the University of Sussex, have kindly accepted to comment on the editorial and engage with some of the difficult questions that were raised by it, such as identity of the epistemic community, the gender inequality in the field of international law, how negative this academic competition is and, relatedly, whether the semantic techniques that are used cannot be useful and necessary in a number of situations.

If one is to engage fully with the editorial, two additional points would need to be discussed, and I invite readers of this blog to react to them as well. First of all, methodologically, one can wonder if the epistemic community of international scholars can really be studied independently of other communities of international law, such as judges, practitioners and activists. Indeed, there is such porosity between those different communities, that the “wordfare” techniques rightly identified by Jean d’Aspremont have an influence way beyond the traditional output of academic scholarship. Professors become Judges and activists, and vice versa, when they do not combine all those functions at once. As a result, this competition necessarily overflows into international courtrooms, judgments and diplomatic circles and can therefore have considerably more far-reaching results than those pointed out in the editorial.

Second, and maybe more fundamentally, what is at the heart of the piece, beyond the social identity of scholars, is the definition of legal science and, to put it a little dramatically, the existence of Law itself. In this sense, I would not necessarily adhere to the shared enthusiasm of all comments, at various degrees, with the effects of Critical Legal Studies on the discipline and Jean d’Aspremont’s provocative conclusion that “we are all Crits”. Of course, the self-reflection that was brought by the Crits is welcome, but one has to wonder if there is not a point beyond which, if we all become Crits, we will cease to be lawyers because we will have sawn the branch we sit on. While this might be a welcome result for some, it is one that should be the conscious choice of the epistemic community of international law, rather than an unintended consequence of blind faith in CLS, a little bit like the ironic quip by French poet Sully Prudhomme: “we are standing on the edge of the cliff, let us walk forward with determination”.

The second article under discussion is entitled The Good Deeds of International Criminal Defendants, by Jean Galbraith. In this piece, the author identifies the inconsistencies in the case law of international tribunals, notably the ICTY and the ICTR, in considering the “good deeds” of defendants as mitigating circumstances in the sentencing phase, and proposes a test to be followed in the future in order to make consideration of such acts more coherent in the future. Mark Drumbl, from Washington and Lee University, and Margaret deGuzman, from Temple University, have kindly accepted to bring their own expertise to the discussion and comment on the article. They rightly point out the importance of this article in an academic scholarship where issues of sentencing are often not given the attention they deserve. At the heart of the discussion is the particular nature of international criminal justice, which deals with mass atrocities on a large scale and most of the time in an institutional setting far removed from the situation under consideration. In this context, by what standards is “just desert” to be determined? How can any deed compensate for the heinous nature of the crimes committed, considered to be those that “shock the conscience of humanity”, as proclaimed by the Preamble to the ICC Statute? Who is to decide what a defendant deserves, his victims or his international accusers? As a result, what lurks in the background is not so much the specificity of ICL, but its inadequacy in dealing with the situations it claims to be able to address. Indeed, if we are going to ask what can mitigate such crimes, one is necessarily led to ask what can be deemed adequate punishment for them in the first place or whether individual responsibility is a satisfactory tool at all to apprehend the profoundly collective nature of the acts?

The articles therefore raise fundamental issues and we hope the articles, and the comments that have been kindly submitted, will spark the debate they deserve. As usual, as you eagerly wait for the next symposium, we invite you to discover the other articles of the current volume of the Leiden Journal, which includes a symposium on the uses of Foucault in international law and an hommage to the late Antonio Cassese in the form of a fictional posthumous interview compiled by Guido Acquaviva.

March 1, 2015Guest Post: The Mirage of Hybrid Justice in Africa?[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva. Before joining the Geneva Academy of International Humanitarian Law and Human Rights, he worked in the Democratic Republic of Congo, ...

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Regular readers of the blog know that one of my hobbyhorses is the "unwilling or unable" test for self-defense against non-state actors. As I have often pointed out, scholars seem much more enamored with the test than states. The newest (regrettable...